The Power to End War

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The Boston Globe

The Power to End War

Charles A. Stevenson

The debate over whether and how to end the war in Iraq has been muddied by legal disputes over which branch of the federal government has the power to do what. Supporters of a strong presidency can point to court decisions upholding a broad reading of the commander in chief's powers. Constitutional purists who believe in Congress' supreme power to authorize war can quote the Framers and most early presidents in their own behalf.

What has been largely ignored in this debate is what Congress has actually done in previous conflicts. In fact, there are many precedents for Congress to act to restrict presidential authority or capabilities to fight the war. The question is whether Congress can muster majorities to enact the necessary laws.

How many people realize, for example, that Congress has formally authorized the use of force at least 15 times in addition to the five conflicts in which it voted a declaration of war?

How many realize that there have been at least seven occasions when Congress denied specific presidential requests for authorities or capabilities to fight the war as he wished?

How many realize that Congress voted to tie the hands of at least six presidents with legally binding limits on conducting significant military activities -- and that those presidents complied with the restrictions?

Those who say Congress shouldn't micromanage military operations or shouldn't interfere with the commander in chief's freedom of action need to explain why these precedents should have no weight now.

The historical record also shows many times when Congress failed to complete action on an issue of war powers -- which is to say, when one or both houses passed resolutions or other measures to approve, oppose, or limit the use of force but Congress as a whole did not cross the important legal barrier of sending a completed bill to the president. If lawmakers care about their institution -- and about the course of the war in Iraq and the US soldiers fighting there -- they should take whatever action majorities can support, even if those are only advisory measures rather than binding law. They can even impose conditions in one paragraph and allow the president to suspend the restriction by another. Even that is better than giving the president free rein.

Consider some of those binding restrictions. President McKinley was barred by law from annexing Cuba. There were many laws limiting Franklin Roosevelt's ability to send arms to nations threatened by Hitler until shortly before Pearl Harbor, so the president had to wait for the law to be changed. Roosevelt even had to re-define the Western Hemisphere as extending to Iceland in order to stay in compliance with the draft law's restriction on sending draftees outside the Western Hemisphere. That prohibition was repealed soon after war was declared.

During the Vietnam War, President Nixon agreed to comply with several congressional restrictions on military operations: the 1969 ban on sending ground combat troops into Laos or Thailand; the 1970 ban on reintroducing US combat troops into Cambodia; and the 1973 ban on US combat operations anywhere in Southeast Asia. In 1976, President Ford reluctantly agreed to the congressional ban on US military operations in Angola.

President Reagan accepted the congressional restriction on US troops sent to Lebanon in 1983, permitting them to use force only in self-defense. President Clinton accepted the congressional bans on US military operations in Somalia after March 31, 1994, and in Rwanda after October 7, 1994 -- measures which wrote into binding law promises already made to Congress. President George W. Bush has complied with ceilings on the number of US military and contractor personnel sent to Colombia.

All these are precedents which could be options now -- if Congress has the will to act. The worst outcome regarding Iraq would be inconclusive action, incomplete legislation, unresolved differences between House and Senate. That outcome would undercut congressional claims to broad authority in wartime and would suggest instead an effort to avoid responsibility for the conflict.

Charles A. Stevenson is the author of "Congress at War: The Politics of Conflict Since 1789."

© 2007 Globe Newspaper Company

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